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Tuesday, 19 April 2016

With the Unified Patent Court bringing European patent litigators ever closer together, there has been an uptick in conferences aimed at facilitating a shared understanding of each other's national patent litigation. EPLAW is such an organization that was established way-back when to do just that (read more here). If you haven't quite accumulated enough gray hairs (figurative or literal) as a result of decades of patent litigation experience, the Young EPLAW conference is for you. Every year a Congress is held where the next generation of Europe's patent litigators get together to discuss developments in their jurisdictions. If you were unable to attend this year, do not fret. Rachel Mumby and Claire Phipps-Jones (Bristows LLP) have come to the rescue and provide a summary of this year's proceedings:

"It is that time of year again, when young (and beautiful) 'junior' lawyers come out to play in Brussels. This year's Young EPLAW Congress kicked off with a UPC moot, eagerly attended by 19 budding advocates. The rest of the 100-strong contingent joined for an informal and typically Belgian dinner and drinks at Le Cirio, followed by the now traditional trip to Delirium (sadly famous for elephants rather than (IP)Kats).

The next morning, the Congress was opened by Penny Gilbert, President of EPLAW, who welcomed everybody that had sufficiently recovered from the Belgian beer the night before to make it down in time for the first session. Participants were then privileged to get an update on the UPC from Kevin Mooney, who provided an informative summary of the likely timetable leading to his anticipated start date of May 2017 for the UPC.

Congress attendees were invited to apply for roles as legally qualified judges from May 2016, as unlike Kevin, all were under the maximum application age of 65. With the sunrise period expected to start in November 2016, he emphasised the need to commence work with clients to ensure that opt out due diligence is under way ahead of time. A brief summary of the new fees and recoverable costs led to the conclusion that the slightly complicated provisions could lead to satellite litigation.

Next up was Claire Phipps-Jones of Bristows LLP, who highlighted a number of complications to Kevin's proposed timelines for the UPC in the event of a Brexit. After some crystal ball gazing, the Congress were left with the impression that as well as delaying the estimated start date of the UPC, a Brexit may well result in some complex renegotiation of the UPCA. Speculation as to the relocation of the cases currently assigned to the London section of the Central Division was rife. As to likelihood of Brexit, both Kevin and Claire agreed to favour the bookies 35% chance of Brexit over the more finely balanced polls. A copy of Claire's presentation can be found here.

Steve Baldwin of A&O and Philipp Widera of Simmons & Simmons gave an overview of case law on SPCs in the UK and Germany resulting from recent CJEU references. They also provided an insight into the complexities of SPCs in the UPC. On opt out, it was noted that it will be simpler to opt out an EP patent prior to the grant of any SPCs, such that any subsequent SPCs are automatically opted out. This strategy should streamline the otherwise complex process of identifying ownership of and individually opting out the SPCs. A copy of Steve and Philipp's presentation can be found here.

Emma Leguillon (Gide), Alex May (Bristows LLP), Marijn van der Wal (DLA Piper), Kristof Neefs (Altius) and Kasper Frahm (Plesner) each provided an overview of the groundless threats provisions and case law, providing useful insight into the requirements and possible pitfalls of notice letters in their respective jurisdictions. This was summarised well by a case study which demonstrated a reasonable degree of harmonisation between the countries, but also highlighted some key differences, such as the availability of a cross-border "fluttering" injunction via the Dutch Courts (preventing patentees from simply "waving" their patents in the face of potential infringers).

Next was lunch, which provided all participants with an opportunity to catch up and boost their blood sugar levels in preparation for an afternoon of skinny labelling and SEPs.

Siddharth Kusumakar (Powell Gilbert), Laura Cantero (HOYNG ROKH MONEGIER), Marion Savary (Hogan Lovells) and Mattie de Koning (Simmons & Simmons) successfully took on the challenge of educating the masses on the intricacies of direct and indirect infringement in skinny label cases, comparing the courts' approaches to the Lyrica case in the UK, France and Spain, and the Ribavirin and Aclasta cases in the Netherlands. It is clear that many unanswered questions remain. All parties favoured the exploration of other solutions in addition to patent law.

Amandine Métier (Véron & Associés), Thomas Misgaiski (HOYNG ROKH MONEGIER) and Vittorio Cerulli Irelli (Trevisan Cuonzo) had the pleasure of being joined by Judge Peter Blok of the Court of Appeal in The Hague to explore the CJEU's ruling on Huawei v ZTE, the national aftermath and the Judge's perspective. Despite the basic FRAND negotiation framework set out by the CJEU appearing clear on its face, there are many questions that remain to be interpreted by the national courts. Indeed, Judge Blok identified various points arising from the beginning, middle and end of the process which are yet to be considered by the Dutch Courts, but with which the German Courts have started to grapple. In doing so, he noted the importance of a unified approach across Europe to the issue of FRAND determination.

In summing up, Giovanni Casucci (representing the EPLAW Board) noted the strength and resilience of the Young EPLawyers and importance of such congresses in future harmonisation."

The presentations that the AmeriKat was unable to get her paws on will likely be uploaded on the EPLAW website in a few days.

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